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In
an unanimous opinion in Marceaux v. Lafayette City-Parish Consolidated
Government, a panel of the Fifth Circuit reversed and remanded the district
court judge’s protective order requiring that the Plaintiffs, current and former
police officers in the City of Lafayette, Louisiana, “take down” their website
- - - "http://www.realcopsvcraft.com"
- - - used to communicate their cause. (Note: the website is presently not operable).

The
underlying lawsuit by the Plaintiff police officers claims that the government
Defendants sought to “prevent police officers from reporting certain
civil rights abuses and corruption” within the police department and “retaliated
against them for objecting to these practices.” The website had “an image of the Lafayette
Police Chief, a party in this suit; excerpts of critical statements made in the
media concerning the Lafayette PD Defendants; certain voice recordings of
conversations between the Officers and members of the Lafayette Police
Department; and other accounts of the Lafayette PD Defendants’ alleged failings.” The website seemed to have been once owned by
the Plaintiffs’ attorneys, but they “eventually transferred ownership of the
website” to one of the police officers.

The appellate court rightly
viewed the district judge’s order to cease the website as a prior restraint,
but sought to “balance the First Amendment rights of trial participants with
our affirmative constitutional duty to minimize the effects of prejudicial
pretrial publicity,” citing the classic case of Sheppard
v. Maxwell, 384 U.S.
333 (1966).

In this civil case, theFifth Circuit, however held that there was not sufficient evidence to "establish a nexus between the comments and the
potential for prejudice to the jury venire through the entirety of the Website." The panel found that ordering a removal of the website was not sufficiently “narrowly tailored” to "excising maters with a sufficient potential for
prejudice to warrant prior restraint."

But the panel stated it did not intend to "tie the hands of the district court" in addressing some of the content of the website. As to the specific content of certain recordings made by the Plaintiffs and placed on the website, the panel did discuss the "ethics" of this, noting both the that ABA position is that a lawyer who records the conversation of another does not necessarily violate the Model Rules of Professional Conduct AND that the recordings were not made by an attorney. Thus, the district judge's conclusion that the recordings had to be omitted from the website because they were "unethically obtained" was disapproved.

This rather brief - - - 12 page - - - opinion is well reasoned and would make an interesting class exercise for First Amendment, especially should the website "go live" again.